Frank Gibbard is a staff attorney with the Tenth Circuit Court of Appeals and Secretary of the Tenth Circuit Historical Society—(303) 844-5306, frank_gibbard@ca10.uscourts.gov. The views expressed are those of the author and not of the Tenth Circuit or its judges. The author is grateful for the assistance of the staff at the Denver Public Library Western History Collection. Readers are encouraged to contact Gibbard with topic suggestions or to volunteer to write Historical Perspectives articles. A collection of Historical Perspectives articles is available for purchase from CBA-CLE. Visit www.cobar.org/cle/pubs.cfm?ID=20166 for complete information.

Denver’s central train depot, known as Union Station or Union Depot, opened in the summer of 1881. The grand edifice was finished in the Italian Romanesque style and featured a 180-foot clock tower illuminated with electric lights. At 503 feet long and 65 feet wide, it was said to be the largest structure in the Western United States.1

In November 1883, the Union Depot hosted a Thanksgiving feast in the building’s upscale dining hall. The menu for that evening’s meal fit the elegant surroundings. The embossed bill of fare offered a feast of the choicest meats. Diners could enjoy boiled Mackinaw trout, shoulder of mutton, corned beef and cabbage, sugar cured ham, beef sirloin with horseradish, beef ribs with browned potatoes, mountain pheasant with currant jelly, elk loin with apple butter, wild goose with dressing, and tame turkey with cranberry sauce. If a diner remained hungry after all that, there were plenty of other satisfying items on the menu, including oyster patties, Boston cream puffs, lamb croquettes, various vegetable dishes, and an assortment of pies, pudding, nuts, raisins, oranges, and cheese.2

Those enjoying the fine dining at the Depot that evening were probably unaware of the very different atmosphere one floor below them. In the station’s basement was a small, dark, windowless holding cell, later described as the "dungeon under the depot."3 Within weeks of the Thanksgiving feast, one man’s incarceration there—and subsequent relocation to the fetid Denver City Jail—would lead to his successful damage suit for false imprisonment, and an appeal to the Colorado Supreme Court.

Hacks and Busses, Hustle and Bustle

Union Depot was a busy place in 1883. The station had been constructed to handle traffic from four railroad lines: the Union Pacific; the Denver & Rio Grande Western; the Denver, South Park & Pacific; and the Colorado Central. By 1883, the Denver, South Park & Pacific alone had twenty-eight passenger coaches and ran four trains a day on its Leadville/Gunnison line.4

Passengers who arrived in Denver at all hours of the day and night often needed transportation from the station to their ultimate destination in the city. Two occupations soon emerged to fulfill this need: the transfer agent and the hackman. The transfer agents sold transfer tickets to passengers, entitling them to transportation once they reached the station. The hackmen were the equivalent of today’s taxicab drivers, and were available for hire once passengers arrived at the station.

As time went by, transfer agents and hackmen found themselves at odds with one another. A major source of contention between the two groups involved licensing. The City of Denver had attempted to license the solicitation of railroad passengers at the station by drivers of "hacks" (cabs) and busses. "[T]here was an ordinance prohibiting persons from soliciting the carriage of passengers in hacks and busses, unless the solicitor was possessed of a license issued by the city."5

It was unclear, however, to what extent this licensing ordinance applied to the transfer agents. Transfer agents did not solicit passengers at the station. Instead, they rode the train with the passengers and sold them transfers on the train before it arrived. Once the train reached Denver, the transfer agents would show the transfer holders to their company’s hack or bus. This angered the regular hack drivers, who contended that their competitors were engaging in a form of solicitation without a license. The transfer agents, of course, could respond that they did not actually solicit anyone at the Depot; therefore, they were not subject to the licensing requirement.

Enter Special Depot Policeman E.H. Rust

In the midst of this controversy, the hack drivers found a friend in E.H. Rust, the Depot’s special policeman. If others thought the licensing ordinance ambiguous, Rust did not. He was ready, willing, and able to arrest transfer agents who "solicited" passengers without a solicitation license.

Rust was a product of Denver’s highly politicized police force. It had taken Denver nearly fifteen years from the city’s founding to organize a proper police department. Between 1859 and 1874, when Denver finally developed a stable structure with a police chief and twelve officers, the city became involved in a confusing competition of hierarchy between the offices of police chief and marshal, followed by abolition of the marshal and police chief positions, the resignation of marshals, and even periods of vigilante justice.6

The police department structure of 1874 was not perfect. Under the new arrangement, the mayor and city council controlled the appointment of officers. This made the job of police officer a patronage job, subject to all the political pressure and corruption of such positions.

E. H. Rust was appointed to the force in January 1882, after approval by the mayor and city council. At the time of his appointment, he was the only candidate who did not receive a single negative vote from any councilman.7 This suggests he was either well liked, or well connected.

Approximately a year later, in April 1883, Rust left the general police force when the mayor appointed him a "special policeman" at the train station.8 Rust’s status as special policeman was an unusual one. He was no longer paid by the Denver Police Department, nor did he regularly take orders from those in charge of the Denver Police. Instead, the Depot itself paid his salary and supervised his work. He did, however, wear a Denver Police officer’s uniform and occasionally received orders from Denver’s chief of police. He had the power to arrest people, and he "turned over whomsoever he might arrest to the general police of the city, who afterwards confined them, if need be, in the city jail."9

The Arrest

After his appointment as special policeman, Rust began arresting transfer agents who did not have a solicitation license. One such arrest, reported in the Rocky Mountain News, occurred in July 1883, only three months after Rust’s appointment.10

The arrest of Frank W. Smith happened six months later, in December 1883. Smith was a transfer agent who worked for Maars and Middleton, a company of "baggage and transfer men."11 On the day in question, he met the incoming train at Petersburg, a small town to the south of Denver.12 On board the train, he sold a transfer ticket to a "Miss Warren, of Colorado Springs."13

When the train arrived at the Depot in Denver, Miss Warren and a man who accompanied her and carried her baggage headed for the line of carriages outside the station. Smith held up a finger to signal them. They followed him to the Maars and Middleton carriage. Miss Warren and the baggage carrier entered the carriage and were driven away in it.

"The[se] circumstances occasioned a good deal of disturbance among the hackmen."14 Rust, who witnessed the resulting commotion, responded by arresting Smith. He abruptly escorted Smith to the Depot basement, so abruptly in fact that Smith did not have time to turn over the checks he had collected on the train to his co-employees. Smith would later complain that in effectuating the arrest and his subsequent incarceration, Rust "with violence pulled and dragged him about" and "thrust him into a jail or dungeon underneath the depot."15

The Dungeon

The "dungeon" underneath the Depot, where Smith was held, was a grim place. The Colorado Supreme Court described it as follows:

When the depot was built, a cell had been constructed in the basement about 8 by 10 feet in size. It had no outer window, and was entered from the engine-room, in which there was a small gas-jet. This furnished the only light, and it reached the cell through a small hole in the door.16

The darkened cell was empty, except for a few old blankets. Rust left Smith in it, alone. The only indication Smith had of how long his confinement might last came at the changing of the guard, when Rust told his replacement to turn Smith over to the regular city policeman when he came around.

Fortunately for Smith, Officer Price of the Denver Police Department soon arrived. Smith was only confined in the Depot’s holding cell for about an hour. Unfortunately for Smith, Officer Price took him to the Denver City Jail.

"The Way of the Transgressor is Hard"

In November 1881, not long after Union Depot opened to the public, the Denver City Building Inspector had condemned the Denver City Jail building.17 The jail had remained open in the succeeding years, however, faute de mieux. The city jail was located in a former meat market on 13th Street between Larimer and Holladay (now Market) Streets.18 It was known for its "[m]any escapes, rats, and a constant foul odor from the drunks in the bullpen."19 The jail was full of vermin and the air inside was suffocating.20 Goats were known to wander the premises.21 Women were housed in close proximity to men who yelled salacious remarks at them, and "respectable" women charged with crimes were put in a cell with common prostitutes.22 The jail’s motto was inscribed on the wall of the jailer’s office: "The Way of the Transgressor is Hard"23—and was true to its words.

It was into this gloomy and chaotic environment that Officer Price transported Transfer Agent Smith. Price locked Smith in the jail’s bullpen,

an unfurnished cell, about 6 feet wide and 15 feet long, with a row of cells on either side. The other occupants were [N]egroes and drunken men, and the place was dirty and noisome.24

Smith stayed there until midnight, when he was released on bail.

Subsequent Proceedings, Criminal and Civil

The next morning, Rust filed a criminal complaint with a police magistrate, charging Smith with soliciting passengers for carriage travel without a license. The case went to trial, and Smith was acquitted.

On January 3, 1884, Smith filed a civil suit in Superior Court against the Union Depot and Railroad Company. His complaint charged that the Depot’s officers had

assaulted [him], and with violence pulled and dragged him about, forced him in the depot and thrust him into a jail or dungeon under the depot, and afterwards, on the same day, pulled and dragged him with violence, and delivered him to a police officer who caused him to go along the public streets to jail, and there imprisoned him with common vagrants, drunkards and felons, for a space of more than three hours, all without any reasonable or probable cause, whereby [he] was not only greatly hurt, bruised and wounded, but was exposed to public disgrace and injured in his credit and circumstances and other wrongs to the damage of $20,000.25

Smith’s case was tried three times. The first jury failed to reach a unanimous verdict. The second jury awarded him $5,000, but the Superior Court deemed it excessive and ordered a new trial. After the third and final trial, the jury awarded Smith $3,000 in damages. The Depot appealed.

Supreme Court Proceedings

The Supreme Court appointed a panel of three commissioners to decide the issues on appeal. The first issue before the commissioners was whether Rust was in fact a duly constituted officer of the Denver Police Department. If not, he lacked authority to arrest Smith. The jury had found against Rust on this issue, and the commission found the jury’s verdict conclusive on the point. Simply put, the mayor had lacked authority to appoint Rust a special policeman in the first place.

The commission noted that under the 1883 charter for the city of Denver

at the time the mayor issued the commission to Mr. Rust he had no power to appoint a special policeman, except under certain emergencies, and for certain designated purposes, and for a certain period of time.26

Although Rust’s apparent authority as a policeman under the mayor’s commission might be binding in certain contexts (which the commission did not enumerate), the courts had the authority to determine for purposes of an improper arrest claim whether he had in fact been acting as a policeman, or merely as a private citizen. Rust was in fact not a duly constituted policeman; he was merely an agent of the Depot. As such, he lacked authority to arrest Smith.

The commission also considered whether the amount of the jury’s verdict was excessive, and determined that it was not. The commissioners reasoned that "[i]t was a most unwarrantable interference with the personal liberty of a citizen, under circumstances indicating an oppressive use even of a supposed authority."27 The commission therefore recommended that the jury’s verdict be confirmed.

The Supreme Court, per curiam, affirmed the commissioners’ recommendation.28 It noted that although the damages were unusually large for such a case, two juries had previously awarded at least $3,000 for Smith’s injuries, and the district court had refused to disturb the second verdict. Any excess in the verdict was not so gross, nor the damages so enormous, that an appellate court should interfere with the jury’s discretion.29

Aftermath

Much of the original Union Depot was destroyed in an electrical fire in 1894. The central portion of the Depot was quickly rebuilt. Of the original 1881 station, only the refurbished north and south wings remain today. The central portion dates from the 1894 renovation. The station was refurbished again in 1914 and subsequently has been improved or refurbished. Union Station is currently undergoing redevelopment and will reopen in spring 2014. Its re-emergence as a 21st century multimodal transportation hub, though conjuring concerns of its own, may put to rest any lingering ghosts left behind from the days of the dark basement dungeon.

2. See copy of menu reproduced at digital.library.unlv.edu/objects/menus/3414.

3. "A Jugged Jehu," Rocky Mountain News 3 (Jan. 4, 1884). A "jehu" is an archaic term for a cab driver. It comes from the story of Jehu in the Old Testament, who rode his chariot to the city of Jezreel. See 2 Kings 9:16.

4. See Time Schedule No. 4 (Nov. 11, 1883), reproduced at www.midcontinent.org/rollingstock/CandS/dsp-passenger/dsp_fleetinfo2.htm Also that year, on November 18, 1883, railroads in the United States and Canada adopted five standardized time zones, bringing a new consistency to railroad timetables. One of the longitudes on which the new time zone system was based was located roughly along an axis point running through Denver.

7. "The Mayor Names a Number of New Policemen," Rocky Mountain News 8 (Jan. 6, 1882).

8. Smith, 27 P. at 330.

9. Id.

10. "A License Question," Rocky Mountain News 1 (July 17, 1883).

11. Smith, 27 P. at 330.

12. Id. Petersburg later changed its name to Sheridan. It is a small community located southwest of Denver in Arapahoe County, and is today served by an RTD light rail line. See en.wikipedia.org/wiki/Sheridan,_Colorado.

13. Smith, 27 P. at 330.

14. Id.

15. "A Jugged Jehu," supra note 3.

16. Smith, 27 P. at 330.

17. Ortiz, Denver Behind Bars: The History of the Denver Sheriff Department and Denver’s Jail System 1858–1956 at 107 (Advance Press, 2004).